Atchison v. Morris

• Court: Kansas Supreme Court
• Writing for the Court: GREENE, J.:
• Citation: Atchison v. Morris, 70 P. 651, 65 Kan. 532 (Kan. 1902)
• Decision Date: 11 October 1902
• Docket Number: 12,758
• Parties: ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. T. E. MORRIS

70 P. 651

65 Kan. 532

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. T. E. MORRIS

No. 12,758

Supreme Court of Kansas

October 11, 1902

Decided July, 1902.

Error from Kingman district court; P. B. GILLETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Jurisdiction -- Effect of Act of 1895. By the act of February 27, 1895, the general provisions of the statute then in existence conferring jurisdiction on the supreme court were not repealed, but suspended during the existence of the courts of appeals, and immediately upon the expiration of the courts of appeals such provisions became operative again.

2. RAILROADS -- Shipper's Contract -- Notice. While a common carrier cannot stipulate against its own negligence it may, for a valuable consideration, contract that, if damage result to the shipper by reason of its negligence, or the negligence of its agents, servants, or employees, such shipper shall give notice of the damage within a reasonable time.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

C. W. Fairchild, for defendant in error.

GREENE J. All the Justices concurring, BURCH, J., not sitting.

OPINION

GREENE, J.:

In writing the opinion of the court in this case, we are paying a tribute to the learning of our lately deceased associate, Justice ELLIS. Last April this cause was dismissed by this court in an opinion (not reported) written by him, holding that it had no jurisdiction over this litigation. In that opinion he did not concur. His insistence that the court had made a mistake greatly influenced it in granting a rehearing, and, finally, in overruling its former opinion and adopting the views then entertained by him.

This was an action to recover damages claimed to have been sustained by the plaintiff, resulting from the negligence of the railway company, its agents and servants, in the shipment of two cars of cattle from Kansas City to Spivey, Kan. The cause was tried at the November, 1900, term of the district court of Kingman county. A motion for a new trial was overruled, and on January 26, 1901, final judgment for $ 250 was rendered for plaintiff. The defendant below prosecutes this proceeding in error.

The defendant in error challenges the jurisdiction of this court on the grounds that his judgment became final on January 26, and that this court did not have jurisdiction at that time to entertain proceedings in error to review a judgment of the district court where the amount in controversy was less than $ 2000. In the former opinion it was held:

"The law of 1895 creating appellate courts, by granting to such courts exclusive appellate jurisdiction in ordinary civil actions 'where the amount or value' did not exceed $ 2000, and by repealing all acts and parts of acts inconsistent therewith, divested the supreme court of jurisdiction in such cases, and after the expiration of the courts of appeals, on the second Monday of January, 1901, the former jurisdiction of the supreme court did not revive and was not restored until the adoption of chapter 278, Laws of 1901, which took effect on March 5, 1901."

With this view then entertained by the court, the cause was dismissed. Afterward, upon application of the plaintiff in error, a rehearing was granted and a reargument ordered on the following propositions:

"1. Is the act of March 5, chapter 278, Laws of 1901 (Gen. Stat. 1901, § 5019), in expressed terms retroactive?

"2. If so, does your case fall within the following terms of that act; that is, does such act create a distinction between judgments rendered prior to January 14, 1901, and those subsequently rendered?

"3. If so, did the legislature have the power to pass a retrospective act granting the right to prosecute an appeal or proceeding in error from a final judgment, there being no prior law granting the right to prosecute an appeal or proceeding in error from such final judgment to this court?"

After this argument, the justices were unable to agree that, if it were conceded that the act of 1901 is in expressed terms retroactive, and the present case within the saving clause of the act, the legislature had the power to pass a retrospective statute granting the right to prosecute an appeal or a proceeding in error from a final judgment.

The importance of the question, involving as it did a great number of cases, and the insistence of Justice ELLIS that the court in its former opinion had misconstrued the act of 1895, led the court to a re-examination of that act, after which it is now of the opinion that its original opinion was not a correct interpretation thereof. Pertinent to a better understanding of that act, as applied to the question under consideration, are the constitutional and statutory provisions which follow. Section 3 of article 3 of the constitution provides:

"The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law."

Section 1 of chapter 27, General Statutes of 1868 (Gen. Stat. 1901, § 1894), is as follows:

"The supreme court shall be a court of record, and, in addition to the original jurisdiction conferred by the constitution, shall have jurisdiction in all cases of appeal and proceedings in error from the district and other courts in such manner as may be provided by law. . . ."

Section 542 of chapter 80, General Statutes of 1868, reads:

"The supreme court may reverse, vacate or modify a judgment of the district court, for errors appearing on the record. . . ."

The only modification of this general appellate jurisdiction found in the statutes, prior to the passage of chapter 96, Laws of 1895, is chapter 245, Laws of 1889, which provides:

"No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($ 100), except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying the case involving less than one hundred dollars ($ 100) shall certify to the supreme court that the case is one belonging to the excepted classes."

It will thus be seen that up to the time of the passage of chapter 96, Laws of 1895, creating the courts of appeals, the supreme court had general appellate jurisdiction in all civil actions, except those enumerated in chapter 245, Laws of 1889. If this court has no jurisdiction to hear and determine the proceedings in error in the present case, it is by reason of the provisions of chapter 96, Laws of 1895, above referred to. Section 1 of this act reads:

"Except as herein otherwise declared, the jurisdiction of the supreme court, and the procedure therein, shall be as is now provided by law."

It becomes important, therefore, to ascertain the exceptions contained in this act.

"SEC. 9. Said courts of appeals, within their respective divisions, shall have original jurisdiction, concurrent with and to the same extent as is now given by law to the supreme court, in quo warranto, mandamus, and habeas corpus. They shall also have exclusive appellate jurisdiction as now allowed by law in all cases of appeal from convictions for misdemeanor in the district and other courts of record; also in all proceedings in error, as now allowed by law, taken from orders and decisions of the district and other courts of record, or the judge thereof, except probate courts, in civil actions before final judgment, and from all final orders and judgments of such courts, within their respective divisions, where the amount or value does not exceed two thousand dollars, exclusive of interest and costs. . . . All other cases of appeal and proceedings in error shall be taken as now provided by law."

"SEC. 17. The terms of the judges so elected shall commence on the second Monday in January, 1897, and continue for the term of four years and until the second Monday in January, 1901, on which date said court shall expire. . . ."

"SEC. 21. When the courts of appeals shall cease to exist by limitation of law, all cases then pending and undetermined therein shall be certified and delivered by the clerks of said courts to the clerk of the supreme court. . . .

"SEC. 22. All acts and parts of acts inconsistent with this act are hereby repealed."

Transposing the language of section 1, it would read:

"The jurisdiction and procedure in the supreme court shall remain as now provided by law, except as herein otherwise declared." The exceptions are declared in section 9, and are: (1) That, instead of the supreme court's having exclusive original jurisdiction in cases of quo warranto, mandamus, and habeas corpus, it shall have concurrent original jurisdiction with the courts of appeals; (2) that, instead of having exclusive appellate jurisdiction in appeals from convictions for misdemeanors from the...